ALMIRALL, S.A. v. Angel Elizondo Villanueva
Claim Number: FA1411001589774
Complainant: ALMIRALL, S.A. of Barcelona, Spain.
Complainant Representative:
Complainant Representative: UBILIBET, S.L. of Barcelona, Spain.
Respondent: Angel Elizondo Villanueva of Granada, International, ES.
Respondent Representative: «cFirstName» «cMiddle» «cLastName»
REGISTRIES and REGISTRARS
Registries: Silver Avenue, LLC
Registrars: 1&1 Internet AG
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Luz Helena Villamil Jimenez, as Examiner.
Complainant submitted: November 13, 2014
Commencement: November 13, 2014
Default Date: December 2, 2014
Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Procedural Findings:
No multiple complainants or respondents and no extraneous domain names require dismissal.
Findings of Fact
Complainant is a Pharmaceutical company which was established in Spain in 1943 in the city of Barcelona. The pharmaceutical products of this company are sold around the world, and the trademark ALMIRALL, which is a “Housemark”, appears in the face of product´s packaging.
Complainant is the owner of the trademark ALMIRALL, registered under N° 000014340 as a Community trademark on July 19, 1999 in Classes 1, 3, 5, 10, 35, 39 and 42. Property over the trademark ALMIRALL is evidenced in the documentation submitted with the Complaint, and the documentation submitted does furthermore evidence property by the Complainant of several other registrations for the trademark ALMIRALL.
Lastly, Complainant is the owner of several domain names consisting of the trademark ALMIRALL
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
Legal Findings and Conclusions:
URS Procedure 1.2.6 requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended:
1. [URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
The Examiner finds that Respondent obtained registration of a domain name which is identical to a trademark which is registered and in use. Given the fact that the domain name does consist of a registered trademark, the identical nature of the names does create confusion and adversely affects the trademark owner, who has taken care of registering it on multiple jurisdictions to secure its protection.
Complainant submitted satisfactory evidence of the current use of the trademark ALMIRALL, and consequently the requirement of URS 1.2.6.1. is satisfied.
2. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
The Complainant states that the Respondent is not listed as holding any distinctive sign that includes the word “almirall” with the Spanish Patent and Trademark Office, the Office for Harmonization in the Internal market nor with WIPO, and Complainant has not granted to the Respondent any license or authorization to use the ALMIRALL trademarks and domain names.
Considering that the Respondent is in default, no arguments were submitted to explain the reasons for having registered the disputed domain name. On the contrary, since it was demonstrated by the Complainant that Respondent’s domain name <almirall.company> resolves to a website with sexually explicit content for adults, such fact does demonstrate his lack of legitimate right or interest to the said domain name due to the adverse impact that this may cause to the trademark ALMIRALL. In light of this fact, the Examiner finds that the claim meets the requirement of 1.2.6.2. of the URS Procedure.
3. [URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
The Complainant contends that the domain name <almirall.company> was registered primarily with the purpose of selling it, since the Complainant and its DNS Provider received emails offering it for 1.000 euros. Having the Respondent received notice of the Complaint, it was his duty to contradict the veracity of said statement. The lack of response to the Complaint works against him in the present case, in which as said before there is evidence of the fact that the domain <almirall.company> resolves to a porn website, a circumstance that does adversely affect the image and goodwill of the Complainant. The Examiner considers that in the present case the fact that the Domain Name <almirall.company> is identical to the registered trademark ALMIRALL clearly indicates that there is a prima facie intention of the Respondent to benefit or in any case to take advantage the registered trademark ALMIRALL, since the Registrant could not have registered in good faith a domain name that happens to be identical to a trademark that consists of a fantasy word, which is registered and widely used by a Spanish company in his country of origin, because any identical reproduction of a trademark is an infringement thereof, and infringements entail bad faith.
The Examiner, therefore finds that the claim meets the requirement of 1.2.6.3. of the URS Procedure.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration:
<almirall.company>
Luz Helena Villamil Jimenez, Examiner
Dated: December 05, 2014
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